Inability of an individual mp to force disclosure of information. Early

Day Motions can also be used. This procedure allows an MP to put

down a matter for debate without a fixed date. Early Day Motions are

hardly ever debated. Their function is to draw public attention to a

particular issue. They may be supported by a large number of members

across parties, amounting in effect to a petition.

There are other miscellaneous opportunities by way of business ques-

tions and points of order, both of which allow members briefly to draw

attention to matters which concern them. These must, strictly speaking,

relate to the internal procedures of the House, but the Speaker custom-

arily gives considerable latitude. These devices have the advantage

of being available in the well-publicised middle of the parliamentary

day. Finally, there are public petitions which members can present on

behalf of their constituents. These are published in Hansard.

These examples suggest that a sophisticated knowledge of the proce-

dures of the House can be used tactically to some effect. On the other

hand it is easy for a member of Parliament to avoid following up a

complaint from a constituent, by passing it to another agency. There

is, however, considerable evidence that members habitually deal with

grievances outside the formal parliamentary framework, acting in

effect as generalist welfare offices (see Rawlings, 1986). A letter from

an MP is likely to be dealt with at a higher level in the civil service hier-

archy than would otherwise be the case. On the other hand, MPs lack

the expertise and resources to be in a position to follow up complaints

in detail.

12.6.1 The Parliamentary Commissioner for Administration

The Parliamentary Commissioner for Administration (PCA) investi-

gates on behalf of Parliament complaints by citizens against the central

286 General Principles of Constitutional and Administrative Law

government and certain other bodies (Parliamentary Commissioner

Act 1967; Parliamentary and Health Services Commissioners Act

1987; Parliamentary Commissioner Act 1994). Popularly known as the

‘ombudsman’, the PCA enjoys similar salary and security of tenure to

a superior court judge. The PCA has a discretion whether or not to

investigate any particular case although this is subject to judicial

review (see R. v. Parliamentary Commissioner ex parte Dyer (1994)).

Individuals who claim to have suffered ‘injustice in consequence of

maladministration’ can enlist the aid of the ombudsman. In this respect

and others the Parliamentary Commissioner‘s powers are similar to

those of the local commissioners (Chapter 8). There are considerable

limitations on the powers of the PCA as follows:

(i) Important areas of central government activity are excluded from

his jurisdiction. These include foreign affairs, state security (includ-

ing passports), legal proceedings, criminal investigations, gov-

ernment contracts, commercial activities other than compulsory

purchase of land (but statutory powers exercised by contractors

under privatisation arrangements are within the ombudsman’s

jurisdiction), civil service employment matters and the granting

by the Crown of honours, awards and privileges.

(ii) Complaints must be in writing within 12 months of the decision

complained of.

(iii) Complaints must be made to a member of Parliament. It is up to

the MP whether to request the ombudsman, to intervene and the

ombudsman cannot be approached directly by the citizen. There

has been considerable criticism of this rule. MPs, it has been

suggested, prefer to take the credit for redressing grievances them-

selves and may therefore be reluctant to refer to the ombudsman.

Conversely, MPs may be unclear about the ombudsman’s power

and refer inappropriate cases, or even pass the buck by referring

cases indiscriminately (see Drewry and Harlow, 1990). A bill to

allow direct citizen access to the ombudsman was introduced in

2000 but did not become law.

(iv) The ombudsman cannot normally investigate cases where the citi-

zen has a legal remedy but he has a discretion to do so. The position

is similar to that of the local ombudsman (Chapter 8).

(v) The ombudsman has no power to enforce his findings. Unlike the

local ombudsman he does not have the sanction of publicity. His

only power is to report to the MP who enlisted his aid. If he has

found injustice caused by maladministration and considers that it

has not been remedied he may also lay a report before Parliament.

287

Parliamentary Procedure

There is a select committee of the House of Commons to oversee

the ombudsman’s work. Reflecting the convention of ministerial

responsibility, it is for the minister concerned to decide whether to

give effect to the recommendations, for example by compensating

the victim of the injustice, or improving departmental procedures.

Government departments have usually accepted the ombudsman’s

recommendations but much depends on the attitude of the House

of Commons (see for example HC Deb., 6 August 1975, Col. 532).

(vi) The ombudsman‘s investigations are private (s. 7 (2)). The

ombudsman can see documents and interview civil servants and

other witnesses and the normal plea of government confidentiality

cannot be used against him (s. 8 (3)). However, cabinet documents

can be excluded (s. 8 (4)) and the ombudsman must not name

individual civil servants in his report.

Summary

12.1 Procedure in the House is regulated by standing orders and by the Speaker

who has a duty to safeguard all interests. We outlined the lawmaking

procedure as it applies to public bills and private bills. We then looked at the

procedural framework within which the Commons attempts to control public

finance, to supervise the executive and to redress citizens’ grievances. The

timetable is largely under the control of the government as well as

procedural devices for cutting short debate. However, there are opportu-

nities such as ‘opposition days’, parliamentary questions, adjournment and

emergency debates for backbenchers and the opposition to intervene.

12.2 There are mechanisms for approving government spending and taxation

proposals and for scrutinising government expenditure, notably the office

of Comptroller and Auditor General who scrutinise past government expendi-

ture and report to the Public Accounts Committee of the Commons. In gen-

eral, however, the House of Commons is not equipped for the detailed control

of government expenditure. In recent years the emphasis has switched to

internal controls over expenditure through the Treasury, through prescribing

‘targets’ or limits on spending and by delegating financial responsibility to

individual officials. These devices have implications for the constitutional

doctrine of ministerial responsibility.

12.3 Other devices for parliamentary control of the executive include specialist

select committees and the Parliamentary Commissioner for Administration

who investigates citizens’ grievances and reports to the House of Commons.

These devices have implications for ministerial responsibility. This is

because (i) they involve investigating the activities of civil servants; and (ii)

they raise questions about the relationship between ministers and the House

of Commons. Select committees provide a valuable means of publicising

issues but have weak powers and are subject to influence by the executive.

The extent to which select committees can scrutinise the activities of

executive agencies is unclear.

288 General Principles of Constitutional and Administrative Law

12.4 Delegated legislation is often required to be laid before the House although

unless the affirmative procedure is used it may not get serious scrutiny. The

Joint Committee on Statutory Instruments monitors delegated legislation on

constitutional grounds.

12.5 The House of Lords regulates its own procedure. The Lord Chancellor

presides but does not have the disciplinary powers available to the Speaker.

Subject to these considerations, procedure in the Commons is dominated by

the government through its power to propose business and its control of a

majority of votes. Government proposals take up most of the available time.

Government business is so large and complex that detailed scrutiny by the

House is impossible. Members of Parliament have no privileged access to

government information so that their debate is not especially well informed.

12.6 The conventional assessment of Parliament is that it has become subservient

to the executive, primarily because its members have capitulated to party

loyalty reinforced by the electoral system and by the dual role of ministers as

members of both executive and Parliament. Parliament, according to this

view, is at its worst as a method of controlling government finance, poor at

supervising the executive and lawmaking but better at redressing individual

grievances, although this owes a lot to the work of members outside the

formal parliamentary procedures and to the statutory Parliamentary Commis-

sioner who investigates citizens’ grievances on behalf of Parliament.

12.7 On the other hand, Parliament provides a forum where the executive must

defend itself in public and expose the strengths and weaknesses of its

leaders. The possibility of defeat in an election may encourage members to

distance themselves from an unpopular government and act as a limited

constitutional check.

Further Reading

Brazier, Constitutional Practice, chapters 8, 11, pp. 204–31, 243–62.

Brazier (1988) ‘The financial powers of the House of Lords’ Anglo American Law

Review 131.

Clothier, C. (1986) ‘The value of an ombudsman’ Public Law 204.

Harden et al., Audit, Accounting Officers and Accountability: The Pergau Dam Affair

[1994] PL 526.

Harden (1993) ‘Money and the constitution: financial control reporting and audit’

13 Legal Studies 16.

Hennessy, The Hidden Wiring, chapter 6.

Jowell and Oliver, The Changing Constitution, chapter 8.

Leyland and Woods, Administrative Law, Facing the Future: Old Constraints and New

Horizons, chapters 3, 4.

Silk, Wallers, How Parliament Works.

Turpin, British Government and the Constitution, Text, Cases and Materials, chapter 7.

Waldron, Law and Disagreement, chapters 2, 3, 5.

White, Harden, Donnelly, Audit, Accounting Officers, and Accountability, the Pergau

Dam Affair [1994] Public Law 526.

Exercises

12.1 Explain and illustrate the difference between a public bill, a private bill and a

hybrid bill. What parliamentary procedures apply in each case?

289

Parliamentary Procedure

12.2 To what extent does Parliament supervise the making of delegated

legislation?

12.3 ‘The key to democracy is the power to control public finance’. Is the UK

constitution democratic in this sense?

12.4 Explain the extent to which the government of the day can control the

parliamentary process.

12.5 Examine the strengths and weaknesses of select committees and parlia-

mentary questions as a means of controlling the executive.

12.6 Compare the procedures of the House of Commons and House of Lords.

To what extent do these reflect the different constitutional functions of the

two Houses?

12.7 Explain the constitutional similarities and differences between the Parlia-

mentary Commissioner for Administration and the Parliamentary Commis-

sioner for Standards.

12.8 The government proposes to introduce the following measures at the

beginning of the parliamentary session 2002–3. The House of Lords has

declared its firm opposition to all of them. Advise the government.

. A bill to extend the life of the present Parliament to 2008. This bill has the

support of 70% of the public in an opinion poll.

. A bill to ban foxhunting and to increase the taxation on country houses. In

order to comply with an EC Directive the bill must become law by the end

of 2003.

. A bill to replace hereditary peers by persons elected by the readers of the

Sun newspaper.

. A statutory instrument imposing restrictions upon rural fishing rights.

13 The Crown

13.1 The Nature of the Crown

We saw in Chapter 4 that UK law has no concept of the state as an

entity and sometimes uses the notion of the Crown as a substitute.

However, the Crown is an obscure concept, particularly as to whether

the Crown and the Queen are the same. The Queen/Crown is (i) part of

the legislature; (ii) the formal executive of the UK as a whole and of

the devolved governments of Wales, Scotland and Northern Ireland;

(iii) head of the Church of England; (iv) head of the armed forces;

(v) source of the authority of the judiciary; (vi) prosecutor. The Queen

also has primitive ceremonial and symbolic functions representing

Bagehot’s ‘dignified’ constitution as a focus of authority.

There may be conflicts between different aspects of the Crown.